New York State Court of Claims

New York State Court of Claims

LUPIN v. THE STATE OF NEW YORK, #2002-010-023, Claim No. 102348


Slip and fall at SUNY. No negligence and wrongful death not established.

Case Information

JUDITH LUPIN as Executrix of the Estate of MARJORIE SCHWADRON The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Terry Jane Ruderman
Claimant's attorney:
Defendant's attorney:
Attorney General for the State of New YorkBy: J. Gardner Ryan, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 19, 2002
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

On the night of March 4, 2000, 71 year old Marjorie Schwadron was walking from the concert hall at the State University of New York at Purchase ("SUNY") toward the parking lot, when she tripped and fell on a broken sidewalk.
Claimant alleges negligent maintenance of the sidewalk and inadequate lighting of the area. Schwadron was admitted to the hospital with a fractured tibia of the right knee and, on March 6, open reduction, internal fixation surgery was performed. On March 9, Schwadron complained of acute abdominal pain in the right upper quadrant. An ultrasound revealed a massive hematoma within the liver and evidence of active bleeding in the pelvis. Throughout the night, Schwadron received blood transfusions. On March 10, 2000, at 8:45 p.m., Schwadron died in the hospital. The death certificate cited intrahepatic bleed as the cause of death and the approximate interval between onset and death was 24 hours (Ex. 1). Schwadron's daughter, Judith Lupin, brings this claim on behalf of her mother for the pain and suffering she endured prior to her death and, as executrix, on behalf of herself and Schwadron's other distributees, for Schwadron's wrongful death, the loss of Schwadron's services, and the distributees' pecuniary loss including medical, funeral, and burial expenses. This claim was heard in a unified trial.
Sydney Tager testified that on March 4, 2000, he and Schwadron attended a concert at SUNY and that, at approximately 10:00 p.m., they left the concert hall. The two were engaged in conversation looking at each other, rather than toward the ground, as they walked from the theater to the parking lot. Schwadron tripped and fell on a broken sidewalk. Tager identified photographs representing the condition of the sidewalk where Schwadron fell (Exs. 2, 3). Tager testified that his vision was not that good, but he could see the sidewalk and the lighting was sufficient enough to enable him to see details including any defects in the sidewalk.

Schwadron's friend, Marjorie Minchenberg, also attended the concert and observed Schwadron on the ground after her fall. Minchenberg described the lighting as "very poor."[1]
Nonetheless, she testified that she was able to see blood on the sidewalk and on Schwadron's hand. Minchenberg identified exhibits 2 and 3 as the location involved, but stated that the cracked chips of concrete had covered the area at the time of the accident and were not piled up at the edge of the building as depicted in the photographs.
There was no testimony, from either Tager or Minchenberg, detailing the depth, width, or length of the alleged defect.

The examination before trial of Justin Herminghouse, audio supervisor of the Performing Arts Center at SUNY, was received into evidence (Ex. 20). Herminghouse responded to the accident scene and observed a "slight unevenness" between the concrete sections of the sidewalk. He estimated that the difference between the two panels was "approximately" one to one and a half inches (Ex. 20, p. 8). He described the lighting as "fairly dim" (Ex. 20, p. 10).

Dr. Mark Fialk,
board certified in internal medicine, medical oncology and hematology, was one of Schwadron's treating physicians. He testified to Schwadron's medical history prior to her fall on March 4, 2000. In late 1998, Schwadron was diagnosed with lung cancer and a lobectomy was performed. There was no lymph node involvement. A year later, Schwadron experienced pain in her left shoulder that was initially diagnosed as tendinitis. A Positron Emission Tronogrophy ("PET") scan was performed on January 21, 2000 to detect the possible presence of cancer (Ex. 14, p. 4). Fialk described this test as a complete body scan that was 95 percent accurate. The test "demonstrated the left shoulder as site of metastasis without evidence of intrathoracic or intraabdominal metastis" (Ex. 15, p. 1). There was no evidence of cancer in the liver. A needle biopsy test on February 15, 2000 revealed a metastatic carcinoma indicating that the previous lung cancer had spread to her shoulder. Several treatment options were considered and radiation was chosen for this solitary metastasis.
Schwadron's fall at SUNY on March 4
th occurred before her cancer treatment had begun. Fialk supported the orthopedist's decision to proceed aggressively with surgery on Schwadron's knee because Fialk believed that Schwadron was in good condition and could continue to live an active life.
The surgery was performed on March 6, 2000. Following the operation, Schwadron was placed on Toradol, a non-steroid anti-inflammatory medication, and then Lovenex, an anti-coagulant. Both drugs inhibit blood clotting. Fialk explained that he prescribed Lovenex because major surgery creates the potential for pulmonary embolisms and immobility increases the risk of clotting. Additionally, the blood of people with metastasized cancer clots more easily.

On March 9, 2000, Schwadron developed significant abdominal discomfort and belching. A variety of tests, including x-rays and an EKG, were administered and eliminated heart attack, pancreatitis, gastric-peptic ulcers, and cholesterolosis, as a cause. A sonogram revealed a subcapsular hemorrhage, bleeding in between the lining and within the liver. In order to reverse the effects of the anti-coagulant drugs, Schwadron was given platelet and blood transfusions. An arteriogram was performed to block the artery leading to the liver. Interpreting the findings of the aortogram/hepatic arteriogram, Fialk explained that the phrase "completely replaced common hepatic artery" referred to a description of the anatomy of claimant's artery (Ex. 15, p. 109).

Fialk opined to a reasonable degree of medical certainty that Schwadron did not have any cancer in her liver. In his view, the laceration in the lower right lobe of her liver was a traumatic injury caused by the fall on March 4, 2000. In support of this conclusion, Fialk noted that when Schwadron was admitted to the hospital, her hemacrit level, the measure of red blood cells, was 34.7 which was below her usual 41 level. While Fialk had initially attributed this lower count to the knee trauma and the cancer, in retrospect, Fialk concluded that Schwadron's liver was bleeding from her fall. He maintained that while Schwadron had not complained of any abdominal discomfort prior to March 9
th, the condition had developed from the time of her fall and had progressed.
Schwadron died March 10, 2000. Fialk signed the death certificate and attributed the immediate cause of death to "intrahepatic bleed" and the approximate interval between onset and death as "24 hours." He indicated the manner of death as "natural cause" (Ex. 1).
Fialk also identified lung cancer as a significant condition "contributing to death but not related" to the blood (Ex. 1). There was no mention of Schwadron's fall or the knee surgery. At trial, Fialk testified that he should have checked accident as the cause of death because the fall caused a slow bleed as evidenced by the lowered hemacrit level upon her admission to the hospital. This, however, contradicts Fialk's indications on the death certificate that estimated the time between onset and death as 24 hours.
On cross-examination, Fialk was questioned about Schwadron's hemacrit and red blood count in February 2000 and September 1999. While the February hemacrit count at 38.8 was lower than the September 1999 of 42.7, Fialk maintained that they were both within the normal range and the difference was not significant in the absence of an overall downward trend.[2]
In his view, 38.8 and 42.7 were medically the same.
Dr. Michael Elia, an orthopedist, provided expert testimony on behalf of defendant. In his opinion, the surgical repair of the tibia was successful, but there were complications. He maintained that there was no way to determine whether the internal bleeding was related to Schwadron's fall and that any conclusion linking the two, in light of the four day time gap, would be conjecture. Prior to March 9
th, there was no indication in Schwadron's medical records of any injury to her liver. Elia, who testified that he has treated people with cancer, testified to his interpretation of the reference to "replaced common hepatic artery" in the arteriogram report. In his opinion, this referred to a closing of an artery that might have been caused by a tumor.
Elia testified that in the course of his practice, he has treated traumas that are not limited to bone injury. Most injuries present quickly, within 24 hours. In his view, based on the medical tests performed upon Schwadron, the cause of the bleeding could not be determined.

The State has a duty to use reasonable care in maintaining its property in a reasonably safe condition to prevent the occurrence of foreseeable injuries (
see, Basso v Miller, 40 NY2d 233, 241). The State also has a duty to warn the public of any latent dangers that are not readily apparent (see, Walter v State of New York, 185 AD2d 536). There is no duty, however, to warn against a condition which is open and obvious and readily observable by the reasonable use of one's senses (see, Paulo v Great Altantic & Pacific Tea Co., 233 AD2d 380). Claimant was bound to see that which could have been observed by a proper use of her senses (see, Coote v Niagara Mohawk Power Corp., 234 AD2d 907).
Moreover, "[n]egligence cannot be presumed from the mere happening of an accident. It is incumbent upon the part of claimant to show affirmatively by competent evidence that the injury complained of was caused by reason of some breach of duty by the State. Negligence must be proven" (
Mochen v State of NewYork, 57 AD2d 719, 720).
Claimant must establish: the existence of a foreseeably dangerous condition; that the State created the condition or had either actual or constructive notice of the condition; that the State failed to remedy the condition within a reasonable time; that such condition was a proximate cause of claimant's accident; and that damages were sustained (see, Gordon v American Museum of Natural History, 67 NY2d 836; Ligon v Waldbaum, Inc., 234 AD2d 347; Mercer v City of New York, 223 AD2d 688, affd 88 NY2d 955).
Upon review of all the trial evidence and upon listening to the witnesses testify and observing their demeanor as they did so, the Court finds that
claimant has failed to establish that defendant was negligent (see, Burstein v City of New York, 259 AD2d 579 [difference in elevation of one inch between terrazzo floor and sidewalk did not constitute a dangerous or defective condition]; Buono v City of New York, 240 AD2d 689 [height differential in brick sidewalk which caused claimant to fall was too trivial to be actionable]). Specifically, claimant failed to establish that the alleged defect was of a significant depth and width as to pose a foreseeably dangerous condition (see, Trincere v County of Suffolk, 90 NY2d 976 [trip and fall claim based upon a cement slab elevated a
little over a half inch above the surrounding slabs was properly dismissed given all the
facts and circumstances presented including the dimension of the defect in issue]; Riser v New York City Hous. Auth., 260 AD2d 564 [pavement which was elevated approximately one inch above surrounding pavement was a defect too trivial to be actionable]). Nor was it established that defendant failed to remedy the condition within a reasonable period of time (see, Katsoris v Waldbaum, Inc., 241 AD2d 511).
The evidence did not clearly establish the extent of the defect. Neither Tager nor Minchenberg testified to the depth, width, or length of the alleged defect and Herminghouse characterized the defect as a "slight unevenness" between the concrete sections of the sidewalk.
Also, Minchenberg testified that the photographs do not accurately depict the condition as it existed prior to Schwadron's fall; rather the chips of concrete had been swept into a pile. Thus, the photographs were not an accurate depiction of the difference in elevation between the slabs of concrete (see, Curci v City of New York, 209 AD2d 574,575 [photographs showing a depth of a few inches were not consistent with the claim of a two foot depth]).
Further, Tager testified that the lighting was sufficient to enable him to see details, including defects in the sidewalk, and his vision was admittedly not that good. Minchenberg's testimony that she saw blood on the sidewalk and on Schwadron's hand detracts from her characterization of the lighting as "very poor." In any event,
Tager testified that he and Schwadron were engaged in conversation, looking at each other, rather than toward the ground when Schwadron fell. Given that Schwadron was not looking where she was walking, the lighting was not a contributory cause of her fall. Rather, the evidence leads to the conclusion that the defect did not constitute a trap or nuisance and Schwadron's fall was due to her own inattentiveness (see, Kojtari v State of New York, 282 AD2d 437; Paulo v Great Atlantic & Pacific Tea Co., 233 AD2d 380, supra).
With regard to the wrongful death claim, the Court finds that
claimant failed to establish, to a reasonable degree of medical certainty, that Schwadron's fall resulted in her death (see, Gunsberg v State of New York, 198 AD2d 59 [the Court, as fact finder, is free to credit the conclusions of defendant's expert instead of claimant's expert]).
Accordingly, defendant's motion to dismiss, upon which decision was reserved, is now GRANTED.


April 19, 2002
White Plains, New York

Judge of the Court of Claims

[1] All quotations are to the trial notes or audiotapes unless otherwise indicated.
[2] The April 1999 count was 44.2 and the October 1998 count was 39.7.